Question 22: During the duration of the acceptance or settlement of a divorce case, does a spouse who is the plaintiff has the right to modify, supplement or withdraw a part of the petition?

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The Civil Proceedings Law gives the spouses the right of self-determination in the process of resolving civil disputes and gives priority to the spouses who are able to make an agreement to solve the dispute, provided that such agreement does not contravene the relevant laws and social ethics. This principle stems from the nature of civil relations to be voluntary, according to the will and wishes of the contracting spouses to the transaction.

According to Article 5.2 of the 2015 Civil Proceedings Code, during the process of resolving a civil case, any of the spouses is entitled to terminate, change his or her request or agree with each other voluntarily, in accordance with the applicable laws and social ethics. Therefore, in principle, either of the spouses has the right to change or supplement the lawsuit claims for divorce.

There are three timelines for the plaintiff to exercise the right to change, supplement or withdraw part of the lawsuit claims.

  • First, before opening of the first instance trial. The Civil Proceedings Code 2015 only stipulates this right of the plaintiff without specifying the timeline for the plaintiff to implement such right at this stage.

On that basis, the Supreme People’s Court has issued Official Letter No. 01/2017 GD-TANDTC to answer technical issues of the Court in localities, in Section 7, Part IV stipulating: “The Court accepts the plaintiff’s modification or addition of a request to lawsuit petition if such change or addition is made before the opening of the meetings for checking the handover, access to and disclosure of evidence and mediating. At the meetings for checking the handover, access to and disclosure of evidences and mediating, the Court shall accept the litigants’ change of the lawsuit petition only if the change of his or her request does not exceed the original scope of petition”.

Therefore, before bringing the cases to trial according to first instance procedures, the Court will hold meetings for checking the handover, access to and disclosure of evidence and mediating according to provisions of this Code. The Court will accept the plaintiff’s changes or additions to the lawsuit claims if the changes or additions are made before the time of opening this meeting without binding whether or not this addition or change exceeds the original scope of the lawsuit. In the event that the request for change or addition to the lawsuit claims is made by the plaintiff at this meeting or after such session, the Court will consider whether or not this addition or change exceeds the original scope of the lawsuit. The Court will only accept when the changes of lawsuit claims do not exceed the original scope of the lawsuit as prescribed in Article 244.1 of the Civil Proceedings Code 2015.

  • Second, at the first instance trial, according to the procedure, the Judge will ask the spouses about whether or not there is any change, addition, partial or complete withdrawal of the lawsuit petition[2]. Then, if the plaintiff exercises one of these rights, the Council of Adjudicators will consider and only accept if the change or addition does not exceed the scope of the lawsuit claims or for partial or total withdrawal of lawsuit claims if the withdrawal is voluntary.
  • Third, at the appellate trial, the Civil Proceedings Law only allows the plaintiff to withdraw the lawsuit petition if acquiring the defendant consents[5]. This is entirely reasonable, since at time of appellate stage, the relevant spouses have already spent a lot of time in the proceedings, so on the one hand, the spouse may decide by himself or herself on his or her own request, and on the other hand, he or she must not interfere too deeply in the interest of the other spouse. This is to ensure the principle of equality of rights and obligations in the proceedings. In addition, at the first instance trial stage after a cassation or reopening trial decision, the defendant is also entitled to express his or her opinion on the plaintiff’s withdrawal of the lawsuit petition[6].

[2] Article 243 of the Civil Proceedings Code 2015.

[5] Article 299 of the Civil Proceedings Code 2015.

[6] Pham Thi Thuy, “The right of defendant to withdraw the plaintiff’s petition”, People’s Court Journal dated 05/9/2018, https://tapchitoaan.vn/bai-viet/phap-luat/quyen-cua-bi-don-doi-voi-viec-rut-don-khoi-kien-cua-nguyen-don.

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